A Litigator's Guide to the Universe

The Power of Embracing Bad Facts

By Jill D. Schmid, Ph.D.

On a recent episode of “All In,” Chris Hayes was discussing one possible approach the Trump team could take in regards to the Stormy Daniels mess. Similar to the approach John Edwards took in his lawsuit involving some of the same issues, the strategy is essentially go for broke by embracing and re-framing the “bad” behavior – “Sure I did it, but it wasn’t illegal.”

For Edwards, he stated it this way: “There’s no question that I’ve done wrong, and I take full responsibility for having done wrong. I will regret for the rest of my life the pain and harm that I’ve caused to others. But I did not break the law, and I never ever thought I was breaking the law.”

For Trump, Hayes discussed how Trump could get out of hot water – “legally” – by proving that he regularly paid hush money to hide his affairs; if it was something he did in the regular course of his life, then this particular payment to Daniels wouldn’t be a violation of campaign laws, but only a violation of being a decent human being.
This strategy is a slight twist on what one of the pioneers of litigation consulting, Joyce Tsongas, used to say at nearly every strategy session: “If you can’t erase it, embrace it.” When it comes to combatting “bad facts” in your case, the strategy is a combination of accepting the bad fact through being direct in both tone and content, and then re-framing it by contextually placing it in the larger case framework.

Regarding the first point, being direct in both tone and content: this is something that can be very helpful in depositions and trial testimony. When confronted with the “bad fact,” witnesses should practice the “Nothing to see here folks” presentation or, to put it another way, an “I’m not worried” tone. Tone and body language can go a long way to signaling to an audience that what could be viewed as a “bad” disclosure is really nothing concerning.

This advice might seem overly simplistic, but a large portion of a message’s impact is comes from tone and body language, so the impact of those two things should not be underestimated. One can say the exact same phrase in two different ways and the message will be perceived in two different ways. As an example, in a recent deposition preparation session, the witness seemed cool, calm, and collected, but all that changed when he was asked about his salary and bonuses. He started hemming and hawing, and then finally stammered to an answer; something that should have been minor took on great significance and I, just like jurors would have, began to wonder why he was acting so guilty.

In this particular case, there were some bunny trails the plaintiff was going down to try to tie the salary and bonuses to other issues in the case, but the witness was only making it worse by nervously and evasively addressing the issue. If he had simply said, “In 2016 my salary was $XXX,XXX and my bonus was $YYY,YYY,” in the same calm and collected – “nothing to see here, folks” manner, I wouldn’t have thought twice. This would also make it difficult for the plaintiff attorney to use the deposition video in trial as an example of the “true nature” of the witness. And, for the deposition itself, this calm and collected answer would probably be unexpected, and not give the examining attorney anything to work with.

Regarding the second point, about re-framing the “bad fact” by contextually placing it into the larger framework. In the case of Trump and Edwards, the “bad fact” is the affair or affairs, but the re-framing in both cases is that while it’s a moral or unethical lapse, it’s not a legal lapse. Dozens of times I’ve seen mock jurors use this same rationale – it’ll be a battle between those who want to use the ethical lapse as evidence of negligence against those procedurally armed by the law and facts to say that while they might not like what happened, it’s not illegal. Yes, it’s a bit painful for the corporate representatives to hear jurors maligning the witnesses and company, but it’s better than hearing, “We award damages in the amount of $50M.”

Bad facts can also be re-framed through comparing and contrasting, minimizing, or contextualizing. As an example, jurors only know if something is “significant” (i.e., “too big,” “too small,” “too many,” etc.) if they have something to use as a comparison. A “failure rate” that plaintiff wants to argue is “too big,” is likely minimized if jurors know the overall use rate. A “missing test” is only important if it’s the most important, the information can’t be obtained elsewhere, or it’s a violation of some sort of standard. In context, it might “simply be a test that one could use or not use, and we chose a different route.” Said in a “nothing to see here” tone, jurors are likely to dismiss it.

Bottom-line, if you can’t run from it, find a way to talk about it without giving it extra importance, and also go through a list of the possible ways to re-frame it within the larger context of your case, and not simply as a “yeah, but…” defensive reply.